Citation Nr: 1010278
Decision Date: 03/18/10 Archive Date: 03/31/10
DOCKET NO. 08-07 293 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Anchorage,
Alaska
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for right
eye enucleation.
2. Entitlement to service connection for a right eye
residual burn scar.
3. Entitlement to service connection for bilateral hearing
loss.
4. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
J. M. Macierowski, Counsel
INTRODUCTION
The Veteran served on active duty from March 1967 to March
1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2006 rating decision from
the Department of Veterans Affairs (VA) Regional Office in
Anchorage, Alaska (RO).
The issues of entitlement to service connection for bilateral
hearing loss, and entitlement to service connection for
tinnitus, are addressed in the Remand portion of the decision
below, and are remanded to the RO via the Appeals Management
Center in Washington, D.C.
FINDINGS OF FACT
1. A May 1972 rating decision denied service connection for
right eye enucleation.
2. In April 1999 and March 2000, the RO found that new and
material evidence had not been submitted to reopen the claim
of entitlement to service connection for right eye
enucleation. Notice was issued to the Veteran in August 1999
and April 2000, respectively. The Veteran did not appeal;
thus, the rating decisions became final.
3. Since April 2000, the additional evidence received is not
material and does not raise a reasonable possibility of
substantiating the claim of entitlement to service connection
for right eye enucleation.
4. A current diagnosis of prosthetic right eye is of record;
the evidence of record does not reflect a diagnosis of a scar
of the right eye or surrounding area.
5. The Veteran's service treatment records show no evidence
a right eye injury or diagnosed eye disorder.
CONCLUSIONS OF LAW
1. Evidence submitted since April 2000 to reopen the claim
of entitlement to service connection for right eye
enucleation is not new and material, and the claim is not
reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §
3.156(a), 20.1103 (2009).
2. A right eye residual burn scar was not incurred in, or
aggravated by, active military service. 38 U.S.C.A. §§ 1110,
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
At the outset, all the evidence in the Veteran's claims file
has been thoroughly reviewed. Although an obligation to
provide sufficient reasons and bases in support of an
appellate decision exists, there is no need to discuss, in
detail, all of the evidence submitted by the Veteran or on
his or her behalf. See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) (holding that the entire record must
be reviewed, but each piece of evidence does not have to be
discussed). The analysis in this decision focuses on the
most salient and relevant evidence, and on what the evidence
shows or fails to show with respect to the appeal. The
Veteran must not assume that pieces of evidence, not
explicitly discussed herein, have been overlooked. See
Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the
law requires only that reasons for rejecting evidence
favorable to the claimant be addressed).
In this case, the Veteran asserts that as a result of an
April 1968 flash burn incident, he sustained a burn to the
right eye area that has resulted in a residual scar. He also
asserts that the right eye injury he sustained as a result of
that April 1968 incident ultimately required enucleation, or
removal, of the right eyeball. See DORLAND'S ILLUSTRATED MEDICAL
DICTIONARY, 623 (30th ed. 2003).
New and Material Evidence Issue
Pertinent procedural regulations provide that "[n]othing in
[38 U.S.C.A. § 5103A] shall be construed to require [VA] to
reopen a claim that has been disallowed except when new and
material evidence is presented or secured, as described in
[38 U.S.C.A. § 5108]." 38 U.S.C.A. § 5103A (f) (West 2002).
Reopening a claim for service connection which has been
previously and finally disallowed requires that new and
material evidence be presented or secured since the last
final disallowance of the claim. 38 U.S.C.A. § 5108; Evans
v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v.
Brown, 8 Vet. App. 522, 524 (1996).
Service connection may be established for a disability
resulting from diseases or injuries which are clearly present
in service or for a disease diagnosed after discharge from
service, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2009); 38
C.F.R. § 3.303 (2009). Establishing service connection
generally requires medical or, in certain circumstances, lay
evidence of (1) a current disability; (2) an in-service
incurrence or aggravation of a disease or injury; and (3) a
nexus between the claimed in-service disease or injury and
the present disability. Davidson v. Shinseki, 581 F.3d 1313
(Fed. Cir. 2009).
New evidence means existing evidence not previously submitted
to VA. Material evidence means existing evidence that, by
itself or when considered with previous evidence of record,
relates to an unestablished fact necessary to substantiate
the claim. New and material evidence can be neither
cumulative nor redundant of the evidence of record at the
time of the last prior final denial of the claim sought to be
reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a) (2009).
The RO denied service connection for right eye enucleation in
May 1972, and notified the Veteran of the decision in June
1972. In the May 1972 rating decision, it was noted that the
Veteran's eye disorder was sustained after service, and there
was no evidence that the Veteran's right eye enucleation was
incurred in service. The evidence of record at the time of
the May 1972 rating decision relevant to the Veteran's claim
for service connection included his service treatment
records, private treatment records dated from November 1971
to December 1971, and the April 1972 VA examination report,
noting that the eye injury occurred after service. The
rating decision was not appealed and that decision is final.
38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104.
In April 1998, the Veteran filed an informal claim seeking to
reopen the matter. In an April 1999 decision the RO
confirmed and continued the denial, finding that the evidence
was essentially duplicative and cumulative of evidence
previously reviewed. Thus, new and material evidence
adequate to reopen the claim of entitlement to service
connection for enucleation of the right eye had not been
submitted. Notice was issued to the Veteran in August 1999.
In reaching this determination, the RO considered private
treatment records dated from January 1974 to November 1998.
VA outpatient treatment records dated from March 1970 to
November 1976, in October 1985, and in June 1993 were also
reviewed.
The evidence continued to reflect that the Veteran sustained
a right eye injury in "October 1969," approximately 6
months after he was separated from service. March 1970 VA
outpatient treatment records reflect that he had total
amblyopia and traumatic glaucoma of the right eye, with only
light perception for visual acuity. As all attempted
treatments failed, the Veteran was scheduled for, and
underwent, a right eye enucleation in December 1971; he
received a prosthetic right eye in October 1972, and had
intermittently received replacement prosthetic eyeballs in
the years since, to include as noted in a September 1992
treatment record. However, no evidence that the Veteran
injured his eye in service, such that an inservice injury
ultimately required the right eye enucleation, had been
submitted.
Shortly thereafter, the RO received additional medical
private medical reports dated from 1985 to 1998. In
response, in March 2000 the RO reconsidered the Veteran's
claim and again confirmed and continued the denial. The RO
found that new and material evidence had not been submitted
as the evidence was essentially duplicative and cumulative of
evidence previously considered. Notice was issued to the
Veteran in April 2000 and he did not appeal. The rating
determination became final.
Private treatment records dated in June 1996, June 1998, and
November 1998 respectively reflect that the Veteran's right
eye blindness was caused by a 1968 injury during his Vietnam
service, that the right eye was enucleated during the time
the Veteran was serving in Vietnam, and that the Veteran
"lost an eye" in Vietnam from a gas explosion. However,
these reports tend to reflect that the claimed incidents in
question were based on the Veteran's subjective reports of
such occurrences, and it appears as though they are not
considered credible evidence of an inservice incident.
Accordingly, these lay statements were insufficient evidence
on which to reopen the Veteran's claim. At this time, the
Board notes that although the credibility of the evidence in
new and material evidence claims is generally presumed, the
Court has held that the credibility of patently incredible
information is not presumed to be credible. Duran v. Brown,
7 Vet. App. 216 (1994) ("Justus does not require the
Secretary [of VA] to consider the patently incredible to be
credible"); compare with Justus v. Principi, 3 Vet. App.
510, 513 (1992). As previously noted, the RO confirmed and
continued the denial in 2000, finding that new and material
evidence had not been submitted to reopen the claim.
In 2005, the Veteran submitted another informal claim seeking
to reopen the matter. The evidence received consists of
private and VA medical reports dated from August 2000 to
September 2000, from March 2006 to December 2006, and in
September 2008, a February 2006 VA scars examination report,
and VA examination reports dated in July and August 2009,
wherein the Veteran gave a subjective history of sustaining
an eye injury or burn during service. This evidence is not
new and material, as it merely shows treatment for the
Veteran's eye complaints or merely reiterates previous
assertions already rejected in prior final determinations.
The evidence does not suggest that the Veteran's eye
enucleation was sustained in service or is merely redundant
in recording the Veteran's subjective assertions. See
generally Moray v. Brown, 5 Vet. App. 211, 214 (1993). Thus,
the evidence does not raise a reasonable possibility of
substantiating the claim of entitlement to service connection
for right eye enucleation.
Accordingly, the Board finds that new and material evidence
has not been submitted to reopen the issue of right eye
enucleation since April 2000. As new and material evidence
to reopen a finally disallowed claim has not been submitted,
the decision remains final, and the appeal is denied.
Service Connection Issue
As noted above, service connection may be established for a
disability resulting from diseases or injuries which are
clearly present in service or for a disease diagnosed after
discharge from service, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Establishing service connection generally requires medical
or, in certain circumstances, lay evidence of (1) a current
disability; (2) an in-service incurrence or aggravation of a
disease or injury; and (3) a nexus between the claimed in-
service disease or injury and the present disability.
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
After considering all information and lay and medical
evidence of record in a case with respect to benefits under
laws administered by the Secretary, when there is an
approximate balance of positive and negative evidence
regarding any issue material to the determination of a
matter, the benefit of the doubt will be given to the
claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009).
The benefit of the doubt rule is inapplicable when the
evidence preponderates against the claim. Ortiz v. Principi,
274 F.3d 1361 (Fed. Cir. 2001).
The Veteran's service treatment records show no evidence of a
right eye injury or diagnosed right eye disorder. A May 1968
service treatment record reflects that in April 1968, the
Veteran was pouring gasoline into a stove when it exploded;
he sustained burns of the right ear, neck, chest, left arm,
and right upper arm. No right eye scars were noted at that
time. The Veteran's March 1969 service separation
examination showed no eye abnormalities other than refractive
error; right eye distance visual acuity was noted to be
20/70, correctable to 20/20; no evidence of a burn or other
scar on or around the right eye was noted.
Subsequent to service, as noted above, the Veteran sustained
a right eye injury in October 1969, approximately 6 months
after he was separated from service; attempts to repair the
eye's function failed, and a right eye enucleation was
completed in December 1971. However, none of the private or
VA outpatient treatment records from that time, or since,
reflects that the Veteran had scar in the right eye area.
Indeed, physical examination of the eye was noted to be
normal in an October 1972 VA outpatient treatment record, and
no scars in the right eye area were noted at the February
2006 VA scars examination. Thus, there is no current
diagnosis of a right eye residual burn scar. The criteria
for service connection require evidence of a current
disability; lacking such a diagnosis, service connection for
a right eye residual burn scar is not warranted. Degmetich
v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the
existence of a current disability is the cornerstone of a
claim for VA disability compensation).
Because the probative and persuasive evidence does not
reflect a current diagnosis of a right eye residual burn
scar, the preponderance of the evidence is against the
Veteran's claim for service connection. As such, the benefit
of the doubt doctrine is inapplicable, and the claim must be
denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
VA's Duties to Notify and to Assist
After review of the claims file, the Board finds that VA has
met all statutory and regulatory notice and duty to assist
provisions in this case. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326 (2009). A December 2005
letter satisfied the duty to notify provisions. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi,
16 Vet. App. 183, 187 (2002). Additionally, the Veteran was
notified of the regulations pertinent to claims to reopen
based on the submission of new and material evidence, and of
the specific evidence required to reopen, in the December
2005 letter. See Kent v. Nicholson, 20 Vet. App. 1 (2006).
Moreover, the Veteran was notified of regulations pertinent
to the establishment of an effective date and of the
disability rating in a March 2006 letter. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
The Veteran's service treatment records, VA medical treatment
records, and identified private medical records have been
obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The
Veteran has not indicated, and the record does not contain
evidence, that he is in receipt of disability benefits from
the Social Security Administration (SSA); therefore, the RO's
failure to request and obtain any relevant SSA records was
not in error. 38 C.F.R. § 3.159 (c) (2). A VA scar
examination was conducted in February 2006; the Veteran has
not argued, and the record does not reflect, that this
examination was inadequate for rating purposes. 38 C.F.R.
§ 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307
(2007). Although a VA examination was not conducted with
respect to the Veteran's claim to reopen the issue of
entitlement to service connection for right eye enucleation,
VA is not required to obtain an examination for a claim to
reopen a finally decided decision. See 38 C.F.R. § 3.159(c).
There is no indication in the record that any additional
evidence, relevant to the issue decided herein, is available
and not part of the claims file. See Pelegrini v. Principi,
18 Vet. App. 112 (2004). As there is no indication that any
failure on the part of VA to provide additional notice or
assistance reasonably affects the outcome of the case, the
Board finds that any such failure is harmless. See Mayfield
v. Nicholson, 20 Vet. App. 537 (2006); see also
Dingess/Hartman, 19 Vet. App. at 486; Shinseki v.
Sanders/Simmons, 556 U.S. ____ (2009); 129 S. Ct. 1696, 2009
WL 1045952, U.S., April 21, 2009 (No. 07-1209).
ORDER
New and material evidence not having been submitted, the
appeal to reopen the Veteran's claim for entitlement to
service connection for right eye enucleation is denied.
Service connection for right eye residual burn scar is
denied.
REMAND
Initially, the Board notes that the Veteran submitted
additional treatment reports in January 2010. A waiver of
initial RO review was not received. It is noted that the
private medical reports reference hearing loss; thus, they
are pertinent to the matters discussed below. The reports
are remanded to the RO for initial review.
It is also noted that the Veteran's service treatment records
show no evidence of bilateral hearing loss, to include on the
March 1969 service separation examination, or within one year
of service separation. Nevertheless, service connection for
hearing loss can still be established if medical evidence
shows that a current impaired hearing disability is
attributable to in-service incidents. Hensley v. Brown, 5
Vet. App. 155 (1993).
In this case, the Veteran has a current diagnosis of mixed
(conductive and sensorineural) hearing loss in the left ear,
and sensorineural hearing loss in the right ear, as noted at
the September 2008 private physician visit. Moreover, the
private physician noted at that time that the Veteran's
underlying bilateral sensorineural hearing loss was
consistent with noise exposure and "may be" related to his
military noise exposure. This opinion is speculative, and
therefore non-evidence. See 38 C.F.R. § 3.102 (2009); see
also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).
However, the evidence with respect to hearing loss,
collectively, meets the "low threshold" set forth in
McLendon v. Nicholson, 20 Vet. App. 79 (2006) (requiring only
that the evidence "indicates" that there "may" be a nexus
between an inservice incident and a currently diagnosed
disorder). As such, a VA audiologic examination is required.
The Veteran and his representative also assert that the
Veteran's tinnitus is related to acoustic trauma the Veteran
sustained during service in Vietnam. Although a current
diagnosis of tinnitus is not formally of record, the Veteran
reported experiencing tinnitus during private physician
visits in June 2006, November 2006, and September 2008.
Tinnitus is a "subjective" disorder, as its existence is
generally determined by whether or not a veteran claims to
experience it; for VA purposes, tinnitus has been
specifically found to be a disorder with symptoms that can be
identified through lay observation alone. See Charles v.
Principi, 16 Vet. App. 370 (2002). If a veteran reports
ringing in his or her ears, which the Veteran in this case
did on the above-noted occasions, then a diagnosis of
tinnitus is generally applied without further examination.
Id. at 374. Additionally, the private physician indicated at
the September 2008 visit that the Veteran's underlying
sensorineural hearing loss-which "may be" related to his
military noise exposure-was "probably" responsible for his
tinnitus. Ultimately, the "low threshold" criteria, as set
forth in McLendon, for finding that a VA examination is
required, are also met with respect to the claim for service
connection for tinnitus. McLendon, 20 Vet. App. at 81.
Accordingly, the issues of entitlement to service connection
for bilateral hearing loss and entitlement to service
connection for tinnitus are remanded for the following
actions:
1. Schedule the Veteran for an
audiological examination, with a VA
examiner of appropriate expertise, to
determine the current nature and
etiology of any hearing loss found.
The claims folder and a copy of this
Remand must be made available to and
reviewed by the examiner. All
pertinent symptomatology and findings
must be reported in detail. Any
indicated diagnostic tests and studies
must be accomplished. Specifically,
the findings of puretone decibel loss
at 500, 1000, 2000, 3000, and 4000
Hertz, must be numerically reported,
and speech recognition percentage
results derived using the Maryland CNC
word list.
Following a review of the service and
postservice medical records, the
examiner must state whether any hearing
loss shown is related to the Veteran's
military service. In this regard, it
is important for the examiner to
differentiate between sensorineural
hearing loss and conductive hearing
loss, if both are found. Additionally,
the examiner must state whether any
tinnitus reported by the Veteran is
related to the Veteran's military
service.
Information contained in the Veteran's
service personnel records, including
his military occupational specialty,
the objective medical findings in the
service medical records, the previous
VA audiological evaluations currently
of record, the Veteran's history of any
inservice and postservice noise
exposure, and any other pertinent
clinical findings of record, must be
taken into account.
If an opinion cannot be provided
without resorting to speculation, the
examiner must indicate why, and specify
what evidence is missing from the
record that makes it impossible to
provide an opinion without speculation.
A complete rationale must be provided
for any opinion expressed. The report
prepared must be typed.
2. Notify the Veteran that it is his
responsibility to report for the
examination and to cooperate in the
development of the claim; the
consequences for failure to report for
a VA examination without good cause may
include denial of the claim. 38 C.F.R.
§§ 3.158, 3.655 (2009). In the event
that the Veteran does not report for
the aforementioned examination, obtain
documentation showing that notice
scheduling the examination was sent to
the last known address of record.
Indicate whether any notice that was
sent was returned as undeliverable.
3. When the above development has been
completed, readjudicate the issues of
entitlement to service connection for
bilateral hearing loss, and entitlement
to service connection for tinnitus. If
any benefit sought on appeal remains
denied, issue an additional
supplemental statement of the case to
the Veteran and his representative.
After the Veteran and his
representative have had an adequate
opportunity to respond, return the
appeal to the Board for appellate
review.
No action is required by the Veteran until he receives
further notice; however, he may present additional evidence
or argument while the case is in remand status at the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
______________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs